Witnesses

Question 1

What must a person have to testify?

Answer 1

• Competence
• Have personal knowledge (Rule 602)
○ Seeing, hearing, or otherwise sensing
• Take an oath or affirmation (and understand that oath)

Question 2

What is the rule regarding judges testifying?

Answer 2

Judges cannot testify in a case they are presiding over.
• To object to a judge testifying, the party does not need to object right away and can bring the objection upon on appeal.
○ Concerns about the objection against the judge making the judge prejudicial against the party that objects.

Question 3

What are the four capacities to testify?

Answer 3

Four capacities to testify:

1. Narration
2. Understand the importance of telling the truth
3. Memory (of the incident or what they are testifying on)
4. Perception (personal knowledge)

Law assumes witnesses have all four capacities. Opposing party must provide evidence that the witness lacks one or more capacities (Rules 603, 611)

Question 4

Does a witness need to have all four capacities to testify?

Answer 4

If witness is deficient in one of these areas, they can still testify. Deficient capacity can affect the weight of the witness’ testimony.

Question 5

What is the rule on personal knowledge of a witness?

Answer 5

Witness must have personal knowledge of the event. Cannot testify about what someone else told them.

Question 6

What are the limitations on capacity to communicate?

Answer 6

If a witness has limited capacity to communicate (e.g., can only blink), then they still have capacity. The question would be whether opposing counsel can effectively cross-examine the witness. If no, then they should not be allowed to testify.

Question 7

What are the steps of examination?

Answer 7

1. Direct Examination
2. Cross-Examination
3. Redirect-Examination
4. Recross-Examination

Question 8

What are the goals during direct examination?

Answer 8

• Introduce the witness to the jurors
• Lay the foundation: establish personal knowledge.
• Allow the witness to tell her story.
○ Cannot lead the witness. Must allow the witness to tell the story in her own words in order to establish credibility.
• Should be done in such a way that nobody in the courtroom even knows the attorney is there.

Question 9

What is a leading question?

Answer 9

a question that suggests a certain answer to the witness; it “leads” the witness to that answer.
• Does not need to include all details to be a leading question.
• To identify must ask: does the question suggest a specific answer?
• There is a ladder with most-leading questions at the top and most generic at the bottom. Always start at the bottom of the ladder.

Question 10

What is allowed in cross-examination?

Answer 10

• Leading questions are generally allowed on cross-examination.
○ Exception - if the plaintiff declares a witness hostile, then the witness would be considered friendly to the defense and thus leading questions may not be allowed.

Question 11

What is restricted in cross examination?

Answer 11

• Cross-examiner may ask questions only about issues covered during the direct examination and the credibility of the witness.
○ Can call the witness as their own to open up an inquiry about other topics.
○ If you can tie a question on another matter into credibility, then it can be asked on cross.

Question 12

What are the goals of cross examination?

Answer 12

• Obtain useful details
• Discredit the witness
• Tell a different story
• Do no harm
	○ Stop when you are ahead, don't keep "stomping it in."

Question 13

Can the Court call and question witnesses?

Answer 13

Yes. Rule 614 - allows the Court to call a witness (rarely occurs) and to question a witness (often occurs). Must object at that time, or as soon as jury is not present.

Question 14

When must a witness be excluded from the courtroom?

Answer 14

• When a party requests it, the court must order witnesses excluded so that they cannot hear other witness’ testimony. (Rule 615)

Question 15

What witnesses cannot be excluded from the courtroom?

Answer 15

Cannot exclude:
○ Parties (e.g. - defendant cannot be excluded from the courtroom).
○ Representative of a corporate or organizational party
○ Witness essential for preparation

Question 16

What is the rule regarding using a writing to refresh a witness’s memory?

Answer 16

Rule 612(a) - gives an adverse party certain options when a witness uses a writing to refresh memory (1) while testifying, or (2) before testifying, if the court decides that justice requires the party to have those options.
	• Judge must grant permission before the party can use a document to refresh the witness' memory (permission is usually granted).
	• If refreshment occurs before testifying, the adverse party may only examine the materials if justice requires. Judges generally do not allow it.

Question 17

What is an adverse party entitled to when a witness uses a writing to refresh his memory?

Answer 17

• To have the writing produced at the hearing,
• To inspect it,
• To cross-examine the witness about it, and
• To introduce into evidence any portion that relates to the witness’ testimony.

Question 18

What are the steps to make when refreshing a witness’s memory?

Answer 18

1. Witness say’s he can’t recall
2. Identify “memory jogger” and ask witness if it might refresh.
3. Show MJ to opposing counsel
4. Show MJ to witness
5. Take MJ away
6. Ask witness, “Did that refresh your memory?”
7. Ask witness to testify from memory.

Question 19

What is the rule regarding attacking the credibility of a witness?

Answer 19

any party may attack the credibility of any witness.
• Pre-empt the other party from discrediting your witness (“draw the sting”)
○ Bring out negative things about your witness before the other side can.
• Witness can turn against you (e.g. - domestic violence witness who originally stated she was beat goes on the stand and says “he didn’t hit me”)
Rule 607

Question 20

What is extrinsic evidence and how can it be used?

Answer 20

any evidence other than testimony from the witness currently on the stand.
• Introducing a copy of a letter written by the witness is extrinsic evidence.
○ Must be a non-collateral issue (going to the central issue/fact in consequence) to be introduced in a written statement.
○ Statement must include information on a central issue of the case. If it is a collateral matter, then it cannot be introduced (but the attorney can still ask the witness about it).

Question 21

What is a collateral matter?

Answer 21

Not a fact in consequence.

Relevant to the case solely because it impeaches a witness.

Question 22

How do you impeach a witness with a prior statement?

Answer 22

• Asking questions is quicker than introducing extrinsic evidence
• If the inconsistency involves a fact of consequence, the judge will take time for extrinsic evidence
• If the inconsistency involves a collateral matter, the judge will likely not allow extrinsic evidence in. Can get the jury bogged down.

Question 23

What is the rule for showing that a witness has an untruthful nature?

Answer 23

Rule 608 - Within limits, parties may offer evidence that a witness has an untruthful nature.
• Extrinsic evidence is not admissible to prove specific instances of untruthful conduct. Can ask a question of the witness, and must accept the answer.
○ Purpose is to not create a “trial within a trial.”

Question 24

When can specific instances of untruthful conduct be used against a witness and what is the level of belief required?

Answer 24

• Specific instances of untruthful conduct may only be used on cross-examination if allowed by the judge.
• Extrinsic evidence of a witness’s untruthful acts may be offered for a purpose other than proving the witness’s propensity to lie (Judge has discretion)
• Must have a good faith belief before asking about a specific instance of untruthfulness.
○ Generally need a level equivalent for probable cause for a search warrant.

Question 25

What is the rule regarding reputation or opinion testimony for a witness?

Answer 25

Rule 608(a) - Reputation or opinion testimony about untruthful character is allowed in the form of an opinion about that character.
• Evidence must be in the form of reputation or opinion only,
○ Cannot ask about specific instances of untruthfulness. Opponent can ask about specific examples of truthfulness, but this would be very difficult.
• The evidence must relate to the witness’s character for truthfulness, or untruthfulness, and
• Testimony about a witness’s character for truthfulness can only be elicited after his character has been attacked.

Question 26

When is evidence of the truthful character of a witness allowed?

Answer 26

• Only allowed on cross examination.
• can only be used on redirect if the truthfulness of the witness is attacked on cross.
• Again cannot introduce extrinsic evidence of truthfulness

Question 27

What is the general rule regarding evidence of a witness’s prior criminal convictions?

Answer 27

Rule 609 - Evidence of a Witness’s prior criminal convictions is admissible
• Only allies to witnesses, NOT the defendant.
• Applies only to convictions to attack character for truthfulness

Question 28

What are the restrictions regarding prior criminal convictions of a witness?

Answer 28

• Crimes that do not involve false statements will only be admitted if the probative value outweighs prejudicial effect to that defendant. Generally only allowed for crimes with a potential sentence of more than one year or death (felony) that involve false statements.
○ Only for crimes which witness was released from confinement less than 10 years ago, unless the probative value substantially outweighs prejudicial effect.

• If a crime of dishonesty, is automatically admitted, regardless of it is a misdemeanor or felony. Rule 403 does not apply in this case. Must have been released from confinement or convicted (whichever is later) within the last 10 years.
○ If over 10 years, it may be admitted if the probative value substantially outweighs the prejudicial effect under Rule 403, but this is unlikely.

• A crime that was pardoned may still be admitted, unless the pardon was based on actual innocence.

Question 29

What is a crime of dishonesty?

Answer 29

• All courts agree that this includes perjury, fraud, and embezzlement.
• A dishonest act or false statement must be an element of the crime to be considered a crime of dishonesty.

Question 30

What is the rule regarding crimes of dishonesty for which the witness has not been arrested, but not convicted?

Answer 30

the arrest and charge cannot be brought up under Rule 609.

The actual conduct, however, may be brought up as the arrest gives the questioner a good faith belief to ask about the underlying conduct. “Isn’t it true you defrauded…?”

Question 31

What is the rule regarding a witness’s religious beliefs?

Answer 31

Religious beliefs are not admissible to attack or support a witness’s credibility. Rule 610

Question 32

What is the rule if one party introduces only part of a document?

Answer 32

the adverse party may immediately introduce other portions “that in fairness ought to be considered at the same time” as the first portion.
• Allows a party to introduce qualifying portions of a writing or a recorded statement as soon as the opponent offers the first portion
○ Does not have to wait for the cross-examination.
• Applies only to writings and recorded statements.
• May invoke this rule to introduce portions or whole writings or recordings when necessary to understand another document offered by the opponent.
• Utilizes a fairness principle - “that in fairness ought to be considered at the same time” as those offered by an opponent.